Laborers' International Union Of North America, Local No. 98

National Labor Relations Board - Board Decisions

Oct 17, 1989

296 N.L.R.B. 1332 (N.L.R.B. 1989)

1332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Laborers' International Union of North America,
Local No. 98 and Fisher Construction, Inc.
Case 19-CP-472
October 17, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, HIGGINS , AND DEVANEY
On July 13, 1988, Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and a brief in support of the judge's
decision . The Respondent filed cross-exceptions
and a supporting brief, and an answering brief. The
American Federation of Labor and Congress of In-
dustrial Organizations and the Building and Con-
struction Trades Department, AFL-CIO, filed a
motion to file a joint memorandum , with the
memorandum attached , as amici curiae.'
The Board has considered the decision and the
record in light of the exceptions and briefs and had
decided to affirm the judge 's rulings, findings, and
conclusions and to adopt the recommended Order.
In adopting the judge 's decision, we rely addi-
tionally on the rationale in Laborers Local 1184
(NVE Constructors), 296 NLRB 1325 (1989). There,
we found that it is not unlawful for a union to
picket an employer for recognition within the rea-
sonable time limitations set forth in Section
8(b)(7)(C), even when an object of that picketing is
to seek to establish initial 8 (f) recognition. Al-
though the picketing in the present case was to
compel renewal of an expired 8(f) agreement or to
compel bargaining for a successor 8(f) agreement
after expiration of the contract and after recogni-
tion had been withdrawn , the same result obtains.
We note that if a nonconstruction industry employ-
er were to lawfully withdraw recognition from a
minority nonconstruction industry union after the
expiration of a contract , that union could lawfully
picket the employer for recognition for a reasona-
ble time , not to exceed 30 days. This follows even
though if the employer granted recognition to that
union and entered into a contract , the recognition
and contract would be unlawful under Section 8(a)
and (b) of the Act. In the absence of clear congres-
sional directive from the statute , we decline to
treat building and construction unions with less
favor by applying a different standard to their re-
cognitional picketing from that applied to unions in
other industries.
I We grant the motion and accept the joint memorandum
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Patti L. Hunter, Esq., for the General Counsel.
Theodore T Green, Esq., of Washington, D.C., and Ste-
phen Cuddy, Esq., of Seattle, Washington, for Re-
spondent Union.
Susan Fisher-Stevens, Esq., of Billings, Montana, for the
Company.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
This case was tried in Billings, Montana, on March 31,
1988. The charge and amended charge were filed respec-
tively on July 14 and 20, 1987, by Fisher Construction,
Inc. (the Company). The complaint, which issued on
September 22, 1987, alleges that Laborers' International
Union of North America, Local No. 98 (the Union) vio-
lated Section 8(b)(7)(C) of the National Labor Relations
Act, as amended.
Issue
The primary issue involves the interpretation of the
"reasonable period of time not to exceed 30 days" lan-
guage contained in Section 8(b)(7)(C) of the Act. The
General Counsel contends that where a construction in-
dustry employer lawfully withdraws recognition from a
construction industry union upon the expiration of a col-
lective-bargaining agreement authorized by Section 8(t)
of the Act, all picketing for continued recognition is
barred by Section 8(b)(7)(C) of the Act, as any picketing
would be beyond "a reasonable period of time." The
Union contends, among other things, that there is no
basis in law for treating construction unions different
than other unions with regard to the interpretation of
Section 8(b)(7)(C).'
All parties were given full opportunity to participate,
to introduce evidence , to examine and cross-examine wit-
nesses, to argue orally and to file briefs . Briefs, which
have been carefully considered, were filed on behalf of
the General Counsel and the Union.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS OF FACT
1. JURISDICTION
The Company, a Montana corporation with an office
and place of business in Billings , Montana, is engaged in
the business of general contracting and construction.
' As set forth more fully below, Sec 8(b)(7)(C) proscribes, among
other things , recognitional picketing by a noncertified union where the
picketing is conducted without a petition for an election being filed
within a reasonable period of time not to exceed 30 days from the com-
mencement of picketing.
296 NLRB No. 166
LABORERS LOCAL 98 (FISHER CONSTRUCTION) 1333
During the year preceding issuance of complaint, the
Company purchased and caused to be transferred and de-
livered to its facilites in Montana goods valued at in
excess of $50,000 directly from sources outside of Mon-
tana or from suppliers within Montana which in turn ob-
tained such goods directly from outside that State. The
complaint alleges , the answer as amended admits, and I
find that the Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
The Company, a general contractor, constructs resi-
dential and commercial buildings . Dan Fisher, the presi-
dent of the Company, started the business in 1976 as a
sole proprietorship doing residential and small construc-
tion work. As a sole proprietorship, he entered into two
"project agreements" in which he accepted the terms of
the collective-bargaining agreement between the Billings
Contractors Council and the Union . Those agreements
were in effect only for the length of the jobs. At no time
was there any discussion with the Union about whether
the Union represented the employees , any authorization
cards shown , or any Board or other election held. In
1978 the Company took corporate form and began doing
more complex general construction.
On May 30, 1978 , the Company signed an agreement
under which it became bound by the terms of the con-
tract between the Billings Contractors Council and the
Union . The agreement contained a union-security clause
requiring membership in the Union after 8 days of em-
ployment as a condition of continued employment. It
also contained provisions for a union hiring hall . There-
after the Company and the Union were bound to succes-
sive collective-bargaining agreements , the last of which
was signed on May 8, 1985, and was effective until May
1, 1986. The successive contracts all included the 8-day
union-security clause, which from time to time was en-
forced. On a number of occasions the Union demanded
that employees be discharged because they did not
become members.
On about May 1, 1986, the Union Secretary-Treasurer
and Business Manager Jerry Driscoll spoke to Company
President Dan Fisher and they agreed to roll over the
contract for another year.2
By letter dated February 20, 1987 the Company noti-
fied the Union that the "alleged" agreement would ter-
minate at the end of business on the last day of the effec-
tive period of the agreement. That date was April 30,
1987.
2 This finding is based on the credited testimony of Driscoll Fisher
denied that there was any agreement to roll over the contract However
Fisher acknowledged that he continued to make payments to the trust
fund during the rollover period and that basically he honored the terms
of the contract By letter dated February 20, 1987 , the Company notified
the Union that the "alleged " agreement in effect would terminate at the
end of business on the last day of the effective period of the agreement
The Company 's actions during the alleged "rollover" year lent support to
Driscoll 's assertion that there was an agreement
On April 23, 1987, representatives of the Company
and the Union held a meeting . The Union proposed that
the contract be rolled over for another year and the
Company rejected that proposal. No agreement was
reached and the contract expired by its terms on April
30, 1987. Another meeting was held on May 7, 1987, but
no progress was made.
By letter dated and mailed June 4, 1987, the Company
withdrew recognition from the Union , contending that it
had no duty to bargain with the Union after the expira-
tion of the contract.
On June 16, 1987, the Company notified its employees
that changes were to be made that would be in effect for
new jobs after July 1, 1987. On June 21 the Company
notified the Union's trust funds that no payments would
be made after June 30.
On June 25, 1987, the Union held a meeting at which
its members were told that the Company had withdrawn
recognition and was refusing to bargain further. The
membership voted to strike the Company along with
some other employers.
The Union picketed projects at which the Company
was working for 16 days from July 1 to July 16, 1987.
The picket signs said "Fisher Construction is in violation
of area standards of wages & working conditions-La-
borers Local 98." The picketing took place at two nurs-
ing home projects , one in Laurel and the other in Bil-
lings, Montana . None of the Company's employees hon-
ored the picket line with the possible exception of one
laborer for 1 day. Some of the employees of subcontrac-
tors did not cross the picket line. About 1 or 2 days' time
was lost in completing the jobs.
In early July 1987 while the picketing was taking
place, Robert Muhlbeier, while on the picket line, was
asked by a television reporter how long the Union in-
tended to continue its strike against Fisher . Muhlbeier re-
sponded "Hopefully, they will sit down and talk. If they
don't, we'll picket as long as we have to."
Union counsel stated on the record that for the pur-
pose of this proceeding only, the Union would not inter-
pose an area standards picketing defense . The union at-
torney acknowledged that the picketing was to continue
the bargaining relationship.
The Union did not file a petition for an election among
the Company's employees either before or after the pick-
eting began.
There is no contention made by the General Counsel
nor proof that there was any picket line misconduct.
B. Analysis and Conclusions
The Company is an employer engaged primarily in the
building and construction industry . It entered into a
series of successive agreements covering employees en-
gaged in the building and construction industry with the
Union , which is a labor organization in which building
and construction employees are members . Those agree-
ments were entered into and maintained without a Board
or any other election having been held, without the
Union having been certified by the Board, and without
any showing by the Union to the Company of authoriza-
tion cards or any other proof that the Union represented
1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the employees. The agreements contained a union-securi-
ty clause requiring union membership after the seventh
day of employment, which is a provision that is lawful
only in a construction industry contract authorized by
Section 8(f) of the Act.3 It also contained provisions for
a union hiring hall. The relationship between the Compa-
ny and the Union is governed by Section 8(f) of the Act.
As the Board held in City Electric, 288 NLRB 443, 444
( 1988):4
Thus, as the evidence shows that the Respondent is
engaged in the construction industry and that it en-
tered into its contractual relationship with the
Union at a time when the Union's majority status
had not been established, we find that the relation-
ship between the Respondent and the Union is gov-
erned by Section 8(f) of the Act.
At the expiration of the last collective-bargaining
agreement the Company withdrew recognition from the
Union. That withdrawal of recognition was lawful and
thereafter the Company had no obligation to bargain
with the Union. As the Board held in John Deklewa &
Sons, 282 NLRB 1375, 1377 (1987), enfd. sub nom. Iron
Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988):5
We have decided to overrule the Board's deci-
sion in R . J. Smith, [191 NLRB 693 (1971), enf.
denied 480 F.2d 1186 (D.C. Cir. 1973)] to abandon
the so-called conversion doctrine, and to modify
relevant unit scope rules in 8(f) cases . We shall
apply the following principles in 8(f) cases: (1) a
collective-bargaining agreement permitted by Sec-
tion 8(f) shall be enforceable through the mecha-
nisms of Section 8(a)(5) and Section 8(b)(3); (2) such
agreements will not bar the processing of valid peti-
tions filed pursuant to Section 9(c) and Section 9(e);
Sec 8(f) reads
It shall not be an unfair labor practice under subsections (a) and
(b) of this section for an employer engaged primarily in the building
and construction industry to make an agreement covering employees
engaged (or who, upon their employment, will be engaged) in the
building and construction industry with a labor organization of
which building and construction employees are members (not estab-
lished , maintained , or assisted by any action defined in section 8(a) of
this Act as an unfair labor practice) because (1) the majority status of
such labor organization has not been established under the provisions
of section 9 of this Act prior to the making of such agreement, or (2)
such agreement requires as a condition of employment , membership
in such labor organization after the seventh day following the begin-
ning of such employment or the effective date of the agreement,
whichever is later, or (3) such agreement requires the employer to
notify such labor organization of opportunities for employment with
such employer , or gives such labor organization an opportunity to
refer qualified applicants for such employment , or (4) such agree-
ment specifies minimum training or experience qualifications for em-
ployment or provides for priority in opportunities for employment
based upon length of service with such employer , in the industry or
in the particular geographical area Provided, That nothing in this
subsection shall set aside the final proviso to section 8(a)(3) of this
Act- Provided further, That any agreement which would be invalid,
but for clause ( 1) of this subsection , shall not be a bar to a petition
filed pursuant to section 9(c) or 9(e).
4 The Board held that the party asserting the existence of a 9 (a) rela-
tionship had the burden of proving it See also W. L. Miller Co., 284
NLRB 1180 (1987), Viola Industries, 286 NLRB 306 (1987); John Deklewa
& Sons, infra at fn 41; Estrella Construction Co, 288 NLRB 1049 (1988)
5 See also City Electric, supra
(3) in processing such petitions , the appropriate unit
normally will be the single employer 's employees
covered by the agreement ; and (4) upon the expira-
tion of such agreements , the signatory union will
enjoy no presumption of majority status, and either
party may repudiate the 8 (f) bargaining relationship.
The Union has asserted in substance that the Company
had a continuing duty to bargain with it because the
Union represented a majority of the employees . In fur-
therance of that claim the Union introduced evidence re-
lating to its membership records . However the "so-called
conversion doctrine " was abandoned by the Board in
John Deklewa & Sons, supra . The Board held that proof
of the employees ' union membership , particularly where
such membership was required pursuant to a union-secu-
rity clause, is not sufficient to convert a 9(f) relationship
into a full (Sec. 9(a)) one .6 It follows that the Union's
picketing in the instant case, after the Company had law-
fully withdrawn recognition , was not for the purpose of
forcing the Company to comply with an existing valid
collective-bargaining agreement or to resume bargaining
that was required by law. Cf. Santa Barbara Building
Trades Council (Sullivan Electric), 146 NLRB 1086
(1964). The object of the picketing was to force or re-
quire the Company to recognize or bargain with the
Union within the meaning of Section 8(b)(7) of the Act.
Section 8(b)(7) proscribes recognitional or organiza-
tional picketing by a noncerttfied labor organization: A.
where the employer has lawfully recognized another
union ; B. where a valid election has been conducted
within 12 months ; and C. where the picketing has been
conducted without a petition for an election being filed
within a reasonable period of time not to exceed 30 days
from the commencement of the picketing .? We are con-
cerned here with the third situation (Sec. 8(b)(7)(C)).
6 It is also noted that the fact that none of the Company' s employees
except perhaps for one laborer , honored the Union 's picket line is not rel-
evant in determining whether the Company had a continuing duty to bar-
gain with the Union
7 Sec. 8(b)(7) states that it shall be an unfair labor practice for a labor
organization,
to picket or cause to be picketed , or threaten to picket or cause to be
picketed , any employer where an object thereof is forcing or requir-
ing an employer to recognize or bargain with a labor organization as
the representative of his employees , or forcing or requiring the em-
ployees of an employer to accept or select such labor organization as
their collective bargaining representative, unless such labor organiza-
tion is currently certified as the representative of such employees.
(A) where the employer has lawfully recognized in accordance
with this Act any other labor organization and a question concerning
representation may not appropriately be raised under section 9(c) of
this Act,
(B) where within the preceding twelve months a valid election
under section 9(c) of this Act has been conducted, or
(C) where such picketing has been conducted without a petition
under section 9 (c) being filed within a reasonable period of time not
to exceed thirty days from the commencement of such picketing-
Provided, That when such a petition has been filed the Board shall
forthwith, without regard to the provisions of section 9(c)(1) or the
absence of a showing of a substantial interest on the part of the labor
organization , direct an election in such unit as the Board finds to be
appropriate and shall certify the results thereof . Provided further,
That nothing in this subparagraph (C) shall be construed to prohibit
any picketing or other publicity for the purpose of truthfully advis-
Continued
LABORERS LOCAL 98 (FISHER CONSTRUCTION) 1335
The Board was concerned with organizational and rec-
ognitional picketing even before the passage of Section
8(b)(7) in 1959. In Teamsters Local 639 (Curtis Bros.), 119
NLRB 232 (1957), the Board held that picketing by a mi-
nority union for recognition constituted unlawful re-
straint and coercion of employees within the meaning of
Section 8(b)(1)(A) of the Act.8 The United States Su-
preme Court reversed the Board 's Curtis decision in
NLRB v. Teamsters Local 639 (Curtis Bros.), 362 U.S. 274
(1960).9 The high Court considered both the wording
and the legislative history of Section 8 (b)(1)(A) and con-
cluded in effect that the Board was reading into that sec-
tion something that was not there . In the instant case I
am of the opinion that the General Counsel is seeking to
eliminate from Section 8(b)(7) something that is there.
Section 8(b)(7)(C) proscribes recognitional picketing
which has been conducted without a petition being filed
within "a reasonable period of time" not to exceed 30
days . This case turns on the question of the meaning of
"a reasonable period of time ." If the General Counsel's
position prevails, then that phrase in the statute would be
nullified with regard to recognitional picketing by a
union in the building and construction industry. There
would be no concept of "a reasonable period of time"
because all picketing would be barred from its inception.
In some situations the Board has found that picketing
for less than 30 days was still for an unreasonable length
of time . However in all of those cases, that finding was
necessary to give meaning to the different parts of Sec-
tion 8(b)(7). Section 8(b)(7) contemplates the filing of a
petition for an election within a reasonable time not to
exceed 30 days from the commencement of the picketing
and provides for an expedited procedure in that election.
If the union wins the election , then it is free to continue
picketing . If it loses the election, then further picketing is
proscribed by Section 8(b)(7)(B) of the Act. If no elec-
tion is possible because of some statutory proscription or
because of misconduct on the part of the union, then the
entire statutory scheme cannot be brought to fruition and
all recognitional picketing may be proscribed . That situa-
tion can arise from picketing by a union that represents
guards and admits nonguards into membership . Section
9(b)(3) of the Act prohibits the Board from certifying
such a union . Teamsters Local 71 (Wells Fargo), 221
NLRB 1240 (1975), enfd. 553 F.2d 1368 (D.C. Cir. 1977).
ing the public (including consumers) that an employer does not
employ members of, or have a contract with, a labor organization,
unless an effect of such picketing is to induce any individual em-
ployed by any other person in the course of his employment, not to
pick up , deliver or transport any goods or not to perform any serv-
ices.
Nothing in this paragraph (7) shall be construed to permit any act
which would otherwise be an unfair labor practice under this section
8(b).
8 Sec 8(bXIXA) provides that it shall be an unfair labor practice for a
labor organization to coerce or restrain employees in the exercise of the
rights guaranteed in Sec 7 of the Act Sec. 7 provides that employees
have the right both to join and to refrain from joining labor organizations
except to the extent that such right may be affected by a lawful union-
security clause.
9 By the time the United States Supreme Court decided that case, Sec
8(b)(7) had already been enacted However the impact of Sec 8(b)(7)
was not before the Court and its decision was based only on the assertion
that the recognitional picketing violated Sec . 8(b)(l)(A) of the Act
A similar situation can arise where the union engages in
violent conduct which precludes the holding of a fair
election. Mine Workers District 12 (Truax-Traer Coal),
177 NLRB 213, 218 (1969), 76 LRRM 2828 (7th Cir.
1971). In that decision the Board adopted the administra-
tive law judge's finding that a "reasonable time" is 30
days unless "there are unusual circumstances involved in
connection with the picketing, such as threats or acts of
violence ." 10 Indeed the Board has specifically held that
construction industry picketing for less than 30 days to
establish an 8(f) relationship does not contravene the lim-
itations placed on recognitional picketing by Section
8(b)(7)(C). Los Angeles Building Trades Council, 239
NLRB 264, 269 (1978), enfd. 635 F.2d 859 (D.C. Cir.
1980); Laborers Local 1290 (Walters Foundations), 203
NLRB 397, 401 (1973).
The General Counsel argues in her brief that there is a
strong public policy in favor of giving a union seeking
Sec. 9(a) (majority) status a full 30 days in which to
communicate its message to employees while that public
policy does not operate if the union is trying to coerce
an employer into an 8(f) contract. However Section
8(b)(7) applies both to majority and minority unions. La-
borers Local 840 (Blinne Construction), 135 NLRB 1153,
1162 (1962). Picketing by a minority union may well
force an employer to recognize or enter into a contract
with a union that does not represent the majority of em-
ployees , thus violating Section 8(a)(2) of the Act. Yet
such picketing by a minority union is lawful for a reason-
able time not to exceed 30 days . Of course the recogni-
tion or the contract may be subject to attack under Sec-
tion 8 (a)(2). In an 8(f) construction industry contract, the
recognition or contract is lawful even if the majority
status of a labor organization has not been established.
However the contract can be set aside by a vote of the
employees as such a contract is not a bar to an election.
If it is lawful under Section 8(b)(7)(C) for a minority,
nonconstruction industry union to picket for a reasonable
time to obtain unlawful recognition or an unlawful con-
tract, it would be anomalous to find that a construction
industry union violates that section by engaging in pick-
eting for a reasonable time to obtain lawful recognition
or a lawful contract.
Under Section 8(f) of the Act, construction industry
unions are given a broader scope of activity than is per-
mitted to nonconstruction unions . In dealing with Sec-
tion 8(b)(7) Congress spelled out a detailed, integrated
plan to regulate recognition and organizational picket-
ing. l t Under Section 8(b)(7)(C) a union may lawfully
1° See also Hotel & Restaurant Employees Local 62 (Tropicana Lodge),
172 NLRB 419 , 423 (1968).
11 As the Board held in Laborers Local 840 (Bhnne Construction), supra
at 1155.
As indicated by its text, the thrust of Section 8(bX7) is to deal
with recognition and organization picketing , a matter not dealt with
directly in the Taft -Hartley Act except to the limited extent provid-
ed in Section 8(b)(4)(C ) of that Act. Congress concluded that legisla-
tion was needed in this area and , in the words of the Supreme Court,
[NLRB v. Drivers, Chauffeurs and Helpers Union No. 639, etc. (Curtis
Brothers), 362 U.S. 274, 291] went-
beyond the Taft-Hartley Act to legislate a comprehensive code
governing organizational strikes and picketing . While pro-
Continued
1336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
engage in peaceful picketing for a reasonable time not to
exceed 30 days and may continue to picket thereafter if a
petition for an election is filed. If no such petition is
filed, the picketing must end . If the petition is filed, an
expedited election takes place and the employees can
decide whether or not they want the union to represent
them . If they vote against the union, then further picket-
ing is proscribed by Section 8(b)(7)(B ) of the Act. Sec-
tion 8(b)(7) does not give greater freedom of action to a
construction industry union than -other unions as did Sec-
tion 8(f). However there is nothing either in the language
of Section 8(b)(7) or, as far as I am able to determine, in
the legislative history to indicate that Congress intended
construction industry unions to have less rights under
Section 8(b)(7) than other unions.
The General Counsel's argument that Section
8(b)(7)(C) barred the Union 's picketing from its inception
is based primarily on some of the Board 's language in
John Deklewa & Sons, supra . That case involved the
interrelation of Section 8(a)(5) (relating to the obligation
to bargain) with Section 8(f) (the viability of certain con-
struction industry contracts ). There were no allegations
with regard to Section 8(b)(7) of the Act . As is set forth
above in the quotation from that case , the Board decided
in part that 8(f) contracts were enforceable through Sec-
tion 8(a)(5); that such agreements would not bar a peti-
tion for an election ; and that upon expiration of such an
agreement , there would be no presumption of majority
status and either party could repudiate the 8(f) bargain-
ing relationship . In discussing the right of the parties to
the agreement to repudiate the 8 (f) relationship upon the
expiration of the contract , the Board stated at 1386:
The signatory employer will be free, at all times,
from any coercive union efforts , including strikes
and picketing , to compel the negotiation and/or
adoption of a successor agreement.
If the General Counsel 's theory is accepted , then that
language sub silentio overrules prior Board cases such as
Los Angeles Building Trades Council , supra, and Laborers
Local 1290 (Walters Foundations), supra, which gave the
same rights to construction industry unions with regard
to "a reasonable time not to exceed 30 days" as other
unions had. I am unpersuaded by the General Counsel's
scribing peaceful organizational strikes in many situations , it also
established safeguards against the Board 's interference with legiti-
mate picketing activity . See Section 8(b)(7XC)
Even a cursory examination of the legislative history of the provi-
sions here in issue reveals that , like the so-called "secondary boy-
cott" provisions of the Taft-Hartley Act, Section 8(b)(7) was also "to
a marked degree , the result of conflict and compromise between
strong contending forces and deeply held views on the role of orga-
nized labor in the free economic life of the Nation and the appropri-
ate balance to be struck between the uncontrolled power of manage-
ment and labor to further their respective interests " Local 1976,
United Brotherhood of Carpenters and Joiners of America, AFL, et al.
(Sand Door & Plywood Co.) v NLRB, 357 U S. 93, 99-100
The Board went on to say at 1158
The scheme which Congress thus devised represents what the leg-
islative body deemed a practical accommodation between the right
of a union to engage in legitimate picketing for recognition or orga-
nization and abuse of that right.
argument . In John Deklewa & Sons, supra , the Board
very specifically reversed prior law relating to Section
8(a)(5) and Section 8 (f). Prior 'cases were specifically re-
versed by name . If the Board had intended to reverse im-
portant established law under Section 8 (b)(7)(C) of the
Act, it is likely that it would have done so directly
rather than by implication.
It is also far from clear that the Board intended to in-
clude picketing that was lawful under Section 8 (b)(7) of
the Act in the category of "coercive union efforts, in-
cluding strikes and picketing , to compel the negotiation
and/or adoption of a successor agreement ." Indeed at
footnote 53, the Board in discussing normal presumptions
made a very general statement as follows : "That is, noth-
ing in this opinion is meant to suggest that unions have
less favored status with respect to construction industry
employers than they possess with regard to those outside
the construction industry."
In John Deklewa & Sons, supra at 1381, the Board
stated:
In further protection of employee free choice, Con-
gress made clear its intention that the limitations on
coercive recognitional picketing contained in Sec-
tion 8(b)(7)(C), also added to the Act by the 1959
amendments , should apply to unions seeking to
obtain an 8(f) agreement , notwithstanding any rep-
resentational status derived from an existing 8(f)
agreement.2 2
22 See H Rep., I Leg Hist . 946, 2 Leg. Hist 1715 (remarks of
Sen Kennedy)
That language also appears to indicate that construction
industry unions are to be treated the same as other
unions with regard to Section 8(b)(7)(C) and that only
picketing that goes on for an unreasonable time without
a petition for an election being filed is to be considered
unlawful , "coercive" recognitional picketing.
In sum I find that the General Counsel has failed to
establish by a preponderance of the evidence that the
Union engaged in recognitional picketing without a peti-
tion for an election having been filed within a reasonable
period of time not to exceed 30 days, as alleged in the
complaint.
CONCLUSION OF LAW
The General Counsel has not established by a prepon-
derance of the credible evidence that the Union violated
the Act as alleged in the complaint.
On these findings of fact and conclusion of law and on
the entire record, I issue the following recommended t 2
ORDER
The complaint is dismissed in its entirety.
12 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ti7 U.S . GOVERNMENT PRINTING OFFICE: 1992 312-470/60003